Workplace Investigation Fundamentals
Workplace investigations can pose significant risks to an employer, so properly handling them is critical. Employment and Labour Lawyer, Wanda Shreve walked us through the essentials of workplace investigations and what you need to know.
What is a workplace investigation? What is its purpose?
A workplace investigation is essentially a fact-finding process. The investigator’s job is to gather relevant evidence (interviewing witnesses, reviewing documents, etc.) and assess whether it is “more likely than not” that certain events occurred. While a workplace investigation aims to comply with the employer’s obligations under the law, it ultimately helps the employer establish and maintain a respectful work environment.
What might prompt a workplace investigation?
Typically, the reporting party raises a complaint. Complaint intake processes can vary, so employers must communicate their procedures clearly to employees.
It’s important to note that a complaint doesn’t have to be in writing, or even raised at all to trigger the employer’s duty to investigate. An employer has an obligation to investigate if they know or ought to know about potential concerns in the workplace. For example, an investigation may be required if a manager witnesses inappropriate behaviour that no one reports.
Who is involved?
The main parties in a workplace investigation are:
- The reporting party: the person who makes the complaint or raises the concern.
- The responding party: the person who allegedly engaged in some wrongdoing.
- Witnesses: individuals who may have relevant knowledge about the allegations.
Investigations can also include people who are not employees, or you may have an anonymous complaint with no identifiable reporting party.
Who should investigate?
First and foremost, the investigator should be someone who can be objective and independent and has the skills and knowledge to conduct a fair and defensible process within a reasonable amount of time.
That might mean using an internal resource (e.g., a Human Resource professional). However, employers may also choose to use an external person.
How can a lawyer help in a workplace investigation?
There are a variety of benefits lawyers bring to a workplace investigation.
- Advice & Counsel: Not every complaint requires a full-blown formal investigation. A lawyer can help assess the appropriate course of action. Where an investigation is launched, navigating workplace dynamics can be tricky. A lawyer can advise on interim measures, communication planning, etc.
- Confidentiality: Claims of privilege are strengthened when a lawyer is involved.
- Legal Knowledge: When there is a potential breach of legislation legal knowledge is an asset. For example, an Employment lawyer’s knowledge of human rights legislation is beneficial when investigating alleged discrimination.
- Professionalism & Accountability: As members of a regulated profession, lawyer-investigators are held to enhanced standards of practice.
How does a workplace investigation end?
The investigator produces a written report summarizing their factual findings and analyzing whether the allegations were substantiated on the balance of probabilities. Sometimes, an investigator may be asked to recommend consequences or other organizational changes.
Usually, external investigators provide their report to a designated company contact and do not communicate with the reporting or responding parties or witnesses.
How the employer handles the aftermath of an investigation is a crucial, yet often overlooked, element. Employers must consider how, what, when, and to whom they communicate, what steps they should take to repair relationships and enhance their workplace culture, and how they will prevent and monitor reprisal.
Caravel has a team of over 100 lawyers, including labour and employment lawyers like Wanda who can help support you through your workplace investigations. Connect with us today to learn more about how we can support you!